FEDERAL CIRCUIT COURT OF AUSTRALIA
| IANNELLO & IANNELLO (No.5) | [2020] FCCA 589 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – whether the mother should have sole parental responsibility – competing applications for who the children should live with – child’s spend time arrangements between the parents – best interests of the child – finding of psychological harm and emotional abuse – where the husband has mental impairment impacting his ability to care for the children. FAMILY LAW – Property – just and equitable to alter the parties’ property interests – parties unable to provide an agreed asset and liability statement – where parties have had several withdrawals since separation – where much of the asset pool has been depleted – where the husband received a total and permanent disability payment as a result of a workplace injury – where the husband withdrew from his superannuation early – notional addback of property to the asset pool. |
| Legislation: Accident Compensation Act1985 (Vic) Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 64B, 65D,75, 79 Federal Circuit Court Rules 2001, r.21.02(1)(c) |
| Cases cited: Beklar & Beklar [2013] FamCA 327 |
| Applicant: | MS IANNELLO |
| Respondent: | MR IANNELLO |
| File Number: | MLC 3008 of 2018 |
| Judgment of: | Judge C E Kirton QC |
| Hearing dates: | 19 - 22 November 2019 and 12 December 2019 |
| Date of Last Submission: | 12 December 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 23 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood SC |
| Solicitors for the Applicant: | Marshalls + Dent + Wilmoth |
| Counsel for the Respondent: | Mr Williams |
| Solicitors for the Respondent: | Bayside Family Law Solutions |
| Counsel for the Independent Children's Lawyer: | Mr Ham |
| Solicitors for the Independent Children's Lawyer: | Leslie Family Law |
ORDERS
Parenting Orders
All prior parenting orders in relation to X, born in 2005 (X) and Y, born in 2008 (Y) (together the Children) be discharged.
Parental Responsibility
The Applicant Wife, Ms Iannello (Wife) have sole parental responsibility for X and Y, provided always that the Wife keep the Respondent Husband, Mr Iannello (Husband) informed of significant long term decisions that she makes in relation to the Children and actively seeks the Husband’s input on such issues.
For the purpose of order 2:
(a)Before any such long term decisions are made in respect of X and/or Y:
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- AGLC
- Iannello & Iannello (No.5) [2020] FCCA 589
- Case
- [2020] FCCA 589
- Decision Date
CaseChat Overview and Summary
The court was required to determine several key legal issues. In relation to parenting, the primary issues were whether the Wife should have sole parental responsibility for the children, where the children should live, and the specific arrangements for the children's time with each parent, particularly in light of findings of psychological harm and emotional abuse, and the Husband's mental impairment affecting his capacity to care for the children. In relation to property, the court needed to ascertain whether it was just and equitable to alter the parties' property interests, and if so, to determine the appropriate division, including whether to notionally add back certain depleted assets to the pool.
The court's reasoning in parenting matters focused on the best interests of the children, acknowledging the findings of psychological harm and emotional abuse. Consequently, the Wife was granted sole parental responsibility, with specific provisions for the Husband to be kept informed and to provide input on significant long-term decisions. The children were ordered to live with the Wife, with detailed arrangements for their time with the Husband during term time, school holidays, and special days, including Christmas and Easter. Injunctions were also imposed to restrain certain communications and behaviours between the parents concerning the children. In property matters, the court addressed the depletion of assets by notionally adding back certain withdrawals to the asset pool. The proceeds of sale of a property were ordered to be paid to the Wife, and specific orders were made regarding the division of personal property, including motor vehicles and chattels. The parties were also directed to jointly wind up a company and to forgo claims to each other's superannuation benefits.
The final orders discharged prior parenting orders and established new arrangements for parental responsibility, living arrangements, and time spent between the children and each parent. Property orders were made to divide the parties' assets, including the proceeds of sale of a property, personal property, and the winding up of a company. The court also made orders regarding costs and adjourned the matter for a mention.
Orders
Orders of the court
Parenting Orders
1.
All prior parenting orders in relation to X, born in 2005 (X) and Y, born in 2008 (Y) (together the Children) be discharged.
Parental Responsibility
2.
The Applicant Wife, Ms Iannello (Wife) have sole parental responsibility for X and Y, provided always that the Wife keep the Respondent Husband, Mr Iannello (Husband) informed of significant long term decisions that she makes in relation to the Children and actively seeks the Husband’s input on such issues.
3.
For the purpose of order 2:
(a) Before any such long term decisions are made in respect of X and/or Y:
(i) The Wife shall advise the Husband by email of her proposal relating to X and/or Y; and
(ii) If the Husband wishes to comment on the Wife’s proposal (or if the Husband has any proposal he wishes to make relating to X and/or Y on this issue) he shall, within seven (7) days after the date of the Wife’s email, advise the Wife by one email (to the email address from which the Wife sent her communication) of his views;
(iii) Upon receipt of any comment or proposal by the Husband, the Wife shall give consideration to the Husband’s views;
(iv) After the Wife has considered the Husband’s comments, she shall make a decision and advise the Husband by email or SMS text message of the outcome immediately after making that decision; and
(v) If the Husband does not respond by email as provided in order 3(a)(ii), the Wife shall be entitled to presume that the Husband does not wish to be involved and she may decide the issue.
Living Arrangements and the Time the Children Spend with the Parents
4.
The Children live with the Wife.
Term Time
5.
The Children spend time with the Husband:
(a) Commencing from 24 April 2020, from after school on Friday (or 4:00 pm on a non-school day) to before school on Tuesday (or 9:00 am on a non-school day) each alternate week thereafter.
(b) Such further and other times as may be agreed between the parties in writing.
6.
Orders 4 and 5 be suspended as necessary to facilitate the Children spending time with the parents pursuant to orders 7 and 8.
School Holidays
7.
The Children spend time with the parents during school holidays as follows:
(a) During the Term 1 Victorian gazetted school holidays:
(i) With the Wife for the first half and the Husband for the second half in 2020 and each alternate year thereafter;
(ii) With the Husband for the first half and the Wife for the second half in 2021 and each alternate year thereafter;
(iii) Save that the first half is extended to 9:00 am on the Tuesday after Easter Monday where the Easter period falls across the first and second halves of the holidays.
(b) During the Term 2 and 3 Victorian gazetted school holidays:
(i) With the Wife for the first half and the Husband for the second half in 2020 and each alternate year thereafter;
(ii) With the Husband for the first half and the Wife for the second half in 2021 and each alternate year thereafter.
(c) During the long summer vacation as gazetted by the Victorian Government for half of the holidays as agreed between the parents and in default of agreement:
(i) In 2020/2021 and each alternate year thereafter:
A. For the first half with the Wife;
B. For the second half with the Husband.
(ii) In 2021/2022 and each alternate year thereafter:
A. For the first half with the Husband;
B. For the second half with the Wife.
(d) Such further or other times as may be agreed between the parties in writing.
8.
For the purposes of order 7:
(a) The number of nights in any school holiday period includes the first night upon the conclusion of school and the last night before the commencement of school.
(b) Where that is an odd number of nights, the additional night is allocated to the first half.
(c) Changeover is to occur at 9:00 am on the day immediately following the last night of the first half.
Special Days
9.
The Children spend time with the parents as follows:
(a) At Christmas:
(i) In 2020 and each alternate year thereafter:
A. With the Wife from 12:00 pm on 24 December to 12:00pm on 25 December;
B. With the Husband from 12:00 pm on 25 December to 12:00 pm on 26 December.
(ii) In 2021 and each alternate year thereafter:
A. With the Husband from 12:00 pm on 24 December to 12:00 pm on 25 December;
B. With the Wife from 12:00 pm on 25 December to 12:00 pm on 26 December.
(b) With the Wife at Orthodox Christmas, from 4:00 pm on Christmas Eve to 4:00 pm Christmas Day.
(c) With the Wife from after school on Friday to before school on Monday on the weekend of the Orthodox Easter, provided that order 7(a)(iii) will prevail in the event of a conflict.
(d) With the Wife on Mother’s Day from 10:00 am until 6:00 pm.
(e) With the Husband on Father’s Day from 10:00 am to 6:00 pm.
(f) Such further or other times as may be agreed between the parties in writing.
Changeovers
10.
When school is not available as a changeover venue, the parent with whom the Children are concluding their time shall deliver the Children to the residence of the other parent.
Communication with the Children
11.
Pursuant to s.68B(1) of the Family Law Act 1975 (Cth) the Husband be and is hereby restrained by injunction from:
(a) Initiating communications to or accepting communications from, the Children while the Children are not spending time with him.
(b) Doing any act or thing to prevent the Wife from communicating with the Children or to discourage the Children from accepting communication from the Wife, while the Children are spending time with him.
12.
The Wife be at liberty to communicate with the Children at all reasonable times.
13.
In the event that either of the Children are unable to be located by the parent with the care of the Children pursuant to these orders, or if either of the Children attempts to remove themselves from the care of the parent that is specified in these orders:
(a) The parents communicate immediately and exchange information for the purpose of locating the child or the Children.
(b) Each parent be authorised to contact the child or children by telephone or any other reasonable means to enable the child or the children to be returned to the parent who has the care of the child or the children pursuant to these orders.
(c) Each parent do all acts and things reasonably necessary to locate and return the child or the Children.
AND THE COURT NOTES THAT this order operates as an exception to order 11.
14.
The parents notify each other of any changes to their telephone numbers, email addresses or residential addresses within 24 hours of any change.
Restraints on Parents
15.
If during the Children’s time with one parent (first parent) pursuant to these orders, the Children or either of them attend the home of the other parent or any other place where the other parent may be from time to time, the other parent do all acts and things necessary to return the child or the Children to the first parent immediately.
16.
The Husband and the Wife and their servants and agents are hereby restrained from:
(a) Abusing, belittling, insulting or otherwise denigrating the other parent, their relatives or friends within the presence or hearing of the Children.
(b) Commenting, discussing, or referring to any part of the family law proceedings, including communications, negotiations, or showing any documents from these proceedings, or allowing any other person to do so within the presence or hearing of the Children.
(c) Encouraging the Children not comply with these orders.
Medical
17.
The parents:
(a) Immediately inform the other in the event that the Children are involved in any accident requiring medical attention or suffer from any illness requiring medical attention or are prescribed any medication.
(b) Forthwith inform the other in writing of any medical or other health practitioner with whom the Children are scheduled to consult, or have consulted, and authorise the other parent to make all reasonable enquiries of such practitioner in respect of matters concerning the Children’s health.
18.
The parents be at liberty to provide a copy of these orders and this Judgment to Ms D for the purpose of her continuing to counsel the Children or either of them.
Education
19.
The parents do all acts and things and sign all documents necessary for:
(a) Y to attend E School from the commencement of Year 7.
(b) X to continue to attend.
20.
Each parent is at liberty to:
(a) Communicate directly with any school or education provider or extra-curricular institution attended by the Children.
(b) Have access to any information usually provided to parents.
(c) Attend any school, educational and extra-curricular activities that parents are usually able to attend.
Explanation of Parenting Orders to the Children
21.
The Independent Children’s Lawyer or Counsel for the Independent Children’s Lawyer and Ms G meet with the Children forthwith on the day these orders are published at Level 5, Commonwealth Law Courts, 305 William Street, Melbourne for the purpose of explaining the parenting orders to the Children (ICL Meeting) in the absence of both parties.
22.
Pursuant to s. 68B(1) of the Family Law Act 1975 (Cth) the Husband and the Wife be and are hereby restrained by injunction from initiating communications to or accepting communications from the Children during the ICL Meeting.
23.
Each parent pay one half of Ms G’s fees of and incidental to attending the Commonwealth Law Courts for the purpose of participating in the ICL Meeting.
24.
The Independent Children’s Lawyer to provide Ms G Ms G with a copy of this Judgment to facilitate the ICL Meeting.
25.
The Husband, his servants and/or agents be and are hereby restrained by injunction from attending upon Level 5 this day, and the Husband is directed to leave the Court’s premises forthwith.
26.
The Wife collect the Children from the child minding service on Level 5, Commonwealth Law Courts Building, 305 William Street, Melbourne upon being advised by the Independent Children’s Lawyer or Counsel for the Independent Children’s Lawyer that the ICL Meeting has concluded.
Property Orders
27.
The parties forthwith do all acts and things and sign all documents necessary to cause the proceeds of sale of the real property situated at and known as Property A in the State of Victoria, held on trust by the former solicitors for the Husband, Bayside Family Law Solutions, together with interest earned on that sum, to be paid to the Wife.
Personal Property
28.
Each party be solely entitled to the exclusion of the other to all the other property (including choses-in-action) in the possession of such party as at the date of these orders and without limiting the generality of the foregoing:
(a) The Wife shall retain:
(i) The Motor Vehicle M;
(ii) Her shareholdings;
(iii) The furniture personal possessions and like chattels in her home on the date of these orders; and
(iv) All monies standing to her credit in any bank account in her sole name.
(b) The Husband shall retain:
(i) The Motor Vehicle N and within 28 days he shall discharge the loan encumbering the vehicle and in default, the vehicle be listed for sale to be conducted by the Wife and the proceeds applied:
A. Firstly, in discharge of any encumbrance on the vehicle.
B. Secondly, in payment of the balance to the Husband.
(ii) Subject to order 29, the furniture, personal possessions and like chattels in his home on the date of these orders;
(iii) All monies standing to his credit in any bank account in his sole name;
(iv) The balance standing to his credit in his H Shares and J Shares accounts.
29.
Within seven days the Husband shall make available for collection by the Wife in good condition:
(a) Roof racks for the Motor Vehicle M referred to in order 28(a)(i).
(b) Bicycle 1.
(c) Bicycle 2.
(d) Two of the four bike racks owned by the parties, at the Husband’s election.
(e) The Wife’s camp chair.
(f) All of the Wife’s clothing and other belongings personal to her that remained at the former matrimonial home.
K Pty Ltd
30.
Within 28 days, the parties do all acts and things and sign all documents necessary to wind up the company K Pty Ltd at their joint expense.
General Property Orders
31.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a) Monies standing to the credit of the Husband and Wife in any bank account in their joint names is to be divided equally between them forthwith and the Husband and Wife do all acts and things and sign all documents necessary to close any joint account following the distribution of funds.
(b) Each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other.
(c) All insurance policies shall remain the sole property of the owner named on the policy.
(d) Each party shall be solely liable for and pay and indemnify the other against any liability in their sole name, including any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(e) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Miscellaneous
32.
All extant applications are otherwise dismissed.
33.
The order of Judge C. E. Kirton QC, dated 3 August 2018 appointing the Independent Children’s Lawyer be discharged.
34.
Pursuant to r. 21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.
35.
The Wife file and serve any submissions in relations to costs, including reserved costs, on or before 14 April 2020.
36.
The Husband file and serve any submissions in relation to costs on or before 4 May 2020.
37.
Pursuant to r. 21.02(1)(c) of the Federal Circuit Court Rules 2001 (Cth) the matter be adjourned to the Federal Circuit Court of Australia on 15 May 2020 at 10:00 am for Mention.
AND THE COURT NOTES THAT:
A. On 18 March 2020 the Husband’s solicitors, Bayside Family Law Solutions, filed a Notice of Withdrawal as Lawyer.
B. Pursuant to ss. 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Background
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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